We Must Radically Depoliticize the Supreme Court
If the Supreme Court is meant to be apolitical, why do we nominate its justices through a political process?
The Supreme Court of the United States has historically been considered an independent, apolitical branch of government. So why do we nominate its justices through a political process?
The five Supreme Court justices in the leaked and soon-to-be-official Dobbs v. Jackson Women’s Health Organization ruling that will overturn 50 years of precedent under Roe v. Wade – Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – are the only justices in US history whose nominations were supported by senators representing fewer voters than senators who opposed them.
The US Senate, which decides on SCOTUS nominations made by the chief executive, is one of the most anti-democratic institutions in the western world. With more than half of Americans living in just nine states according to 2020 census data, just 18 senators represent a majority of the country. Further, two-thirds (219,073,534) of Americans live in the largest 15 states, meaning they’re represented by just 30 senators (22 Democrats and eight Republicans).
And in part thanks to Mitch McConnell’s April 2017 ‘nuclear option’ that eliminated the 60-vote threshold for invoking cloture on Supreme Court nominees, justices are more likely to be confirmed along explicitly partisan lines in our government’s least representative body today than ever before.
That is how a majority on the highest court in the land can rule in favor of an opinion that is only shared by 28% of the public.
The draft opinion tees up the reversal of hard-fought, ethically just, and even more popular decisions on gay and interracial marriage and access to contraception.
The leaked decision has renewed calls not just for codifying women’s rights protections in federal law, but for an overhaul of the Supreme Court as an institution. The Constitution outlines seldom detail for how the Supreme Court should be organized, instead leaving this for Congress to decide. Serious reform is therefore plausible.
“Court packing”, or the process by which the Congress could add additional seats to the Supreme Court that would allow President Biden to nominate more justices (typically floated as four additions) has been an increasingly popular option on the left following the highly controversial appointment of justices under the T**** administration.
Alternatively, Dems such as Pete Buttigieg have in the recent past called for a more radical reform that would expand the number of justices to 15, and dictate that five justices be affiliated with Democrats, five with Republicans, and five apolitical justices be chosen by the first 10.
They’re both interesting ideas, and absolutely improvements over the status quo that has allowed for activist Christian nationalists to inherit America’s highest court.
But they exacerbate, rather than solve, the underlying issue at the heart of the Supreme Court: its politicization.
Courts should be apolitical, as intended. But the framers of the US Constitution, in an attempt to create three coequal branches of government with checks and balances, gave the power to nominate and confirm justices to the president and Senate, respectively.
It’s a decision that has caused my British colleagues here in London to express befuddlement to me. How can you espouse the Supreme Court as apolitical when it is made up of justices that received their appointments through an entirely political process?
For an alternative and as my coworkers recommend, one can look to the United Kingdom for an example of how to conduct Supreme Court appointments.
Their Supreme Court is a much newer institution – in fact, it was only formally established in 2009 (!). Before then, their final court of appeal was the Appellate Committee of the House of Lords, a committee within the smaller (less representative) branch of the UK’s bicameral legislature.
Egad! Imagine the US Senate having direct control over the judiciary! Well… More than they already do, as demonstrated.
Besides, that’s not exactly an accurate comparison – thanks to the UK’s doctrine of parliamentary sovereignty, the Appellate Committee then and Supreme Court now are much more limited in their powers of judicial review (i.e., it cannot overturn any primary (parliamentary) legislation but can overturn secondary (executive) legislation).
Differences in government aside (I couldn’t be farther from an expert in British constitutional law despite my residence here), the really interesting difference between the US Supreme Court and the UK’s is in their appointment processes.
In the UK, when vacancies arise on the Supreme Court (on which there sits 12 judges), an independent selection commission is formed, composed of the President of the Supreme Court (analogous to Chief Justice John Roberts, though the President is also elected by an independent commission), a senior UK judge who is not on the Supreme Court, and one member each from the Judicial Appointments Commission of England and Wales, the Judicial Appointments Board for Scotland, and the Northern Ireland Judicial Appointments Commission. The commission, which by law must include at least one member that is not a lawyer themselves, then selects one individual to nominate for the vacancy.
The various constituent commissions are themselves comprised of members of the judiciary, professional lawyers, a tribunal judge, a non-legally qualified judicial member, and lay members.
The commission’s nomination is received by the Lord Chancellor, the highest-ranking Great Office of State (nominally above the prime minister), who decides whether to reject or accept the nomination. If accepted, the prime minister then must recommend the nominated individual to be appointed by Her Majesty, based Lizzie.
When written out, the process is complicated and bureaucratic (yuck), but more robust and less political. Of course, as with all things Britain, it comes with the gross inclusion of monarchy into the process, and it’s also worth mentioning that their court is clearly lacking in diversity (more so than in the US), currently consisting of nine old white men and one old white woman (and two vacancies). But like our forefathers, we can try to improve upon the model.
To Americanize it, imagine an independent commission made up of members of the judiciary and other professional lawyers that nominate judges to Supreme Court vacancies rather than the president. When a nomination is made, the more representative body of Congress – the House – decides whether to accept the nomination. As an added step to increase a sense of balance (and hopefully inspire bipartisanship), the president must then further sign off on the decision. If they veto, they can then be overruled by a supermajority in the House.
There already exist organizations that would be ideal for acting (or partially acting) as independent commissions, namely the American Bar Association and the American Civil Liberties Union, and I think most Americans would agree that they are more qualified for nominating justices than presidents, who will always be beholden to political concerns, even if they are not as brazenly self-interested as T****.
Of course, this is all something of a thought experiment. There does not exist the political will in our divided country to pass much-needed constitutional amendments, let alone the political courage to even do away with the Senate filibuster to allow for sweeping changes to the Supreme Court as well as the codification of federal abortion rights, among other issues.
Nevertheless, normative discussions about what might make for a more perfect Supreme Court are needed given the clear partisan nature of the majority of its justices. Make no mistake: this court is not representative of the American people. It is an embarrassment. It is dangerous in its demonstrated willingness to remove civil rights.
Reform is overdue. Let’s consider a truly depoliticized court.